Oregon pilot program for foster system lawyers 'wildly successful' but limited

In three Oregon counties, the state has departed radically from its usual approach to providing legal help to foster children and their biological parents: It limits lawyers to 80 clients and pays them based on how much time they devote to each case.

Under the experiment, launched in 2014, the state systematically tracks the quality of legal services the children and parents receive. That doesn't happen in Oregon's 33 other counties -- and the results of that lack of scrutiny can be disastrous, The Oregonian/OregonLive showed this week.

In the first two counties where the new approach was instituted, Linn and Yamhill, it appears to benefit both families and taxpayers: A higher share of children have been returned to their parents, and fewer children enter the of foster care system in the first place. The wait time for children to get permanent homes – adoption, guardianship or a return to biological parents – also decreased.

"It's pretty clear this new program is wildly successful," said Sen. Elizabeth Steiner Hayward, a Beaverton Democrat who has pushed for more funding.

Sen. Elizabeth Steiner HaywardAnna Marum | The Oregonian/OregonLive

But lawmakers have declined, most recently in 2017, to spend the money necessary to bring the program statewide, allowing proposals to languish without action. Instead, they've opted to slowly expand the approach into some of the state's smaller counties, including Columbia County in January 2016. That's despite a clear recommendation in 2016 from a task force initiated by former Gov. John Kitzhaber and the Legislature to improve family court outcomes that it should go statewide.

Gov. Kate Brown has pointed out the need for improvement, including after news of abuse and neglect allegations at a Northeast Portland foster care provider. "When we went through the Give Us This Day situation several years ago, I know the governor asked, 'Where were the attorneys?"' Sen. Sara Gelser, D-Corvallis, said during a hearing on expanding the pilot program earlier this year. "We want back and checked with the kids, 'Where were your attorneys?' They didn't know their attorneys' names."

Gelser supports expanding the program. She said it's hard for lawmakers to see the

Sen. Sara Gelser, D-Corvallis.Oregonian/OregonLive file photo

connection between lawyers effectively representing children and parents in foster care cases and improving outcomes for families. She's heard people say the money would be better spent on other services for children and parents. "It is not popular to fund attorneys, but it is absolutely crucial," Gelser said.

NORMALLY, CASELOADS TOP 100

For decades, lawyers who represent children and parents in Oregon's foster care system have struggled under huge caseloads and a pay system that doesn't reward the long hours necessary to vigorously advocate for their clients.

It's common for lawyers to carry more than 100 foster child and parent cases even though the best practice is 80 or fewer, a top official at the agency that hires and oversees the legal contractors told state lawmakers this year. "Chronic underfunding has left us with high caseloads and difficulty finding lawyers willing to do this work," acting deputy director Amy Miller said.

Lawyers for children and parents in Benton, Clatsop, Coos, Curry, Jackson, Klamath, Lake, Lane, Lincoln and Polk counties have been particularly overburdened, the state has said. A 2015 state survey of lawyers revealed the attorneys in those 10 counties had caseloads higher than the state average, according to a document from the Office of Public Defense Services. All of those counties would be required to start lowering caseloads in 2016, the agency wrote.

High caseloads are also a challenge in the Portland area. A decade ago, the governor experienced the problem first-hand. As a state senator and part-time lawyer in 2007, "I had 90 children on my caseload," Brown said recently. "This was work that I really struggled to do despite the fact that I was a legislator at the time, that I was an experienced lawyer at the time, because of the overwhelming caseloads, the lack of services."

Big caseloads are still a reality for lawyers in most of Oregon because their and their firms' pay is tied closely to the number of children they represent. On average, they receive $830 per foster child, according to the agency that pays them. Attorneys don't get paid more to take a case to trial, attend key child welfare meetings, visit a child at home or check whether the child has received necessary evaluations.

Lawyers in the pilot program, by contrast, are paid salaries based on how much work they put in. On average, they are paid $220,000 a year although that must also cover overhead, health care and administrative staff. They also have case managers who help parents attain the skills and behavior necessary to regain custody of their children. Miller has managed the program since starting at the Office of Public Defense Services in 2014.

Rep. Duane Stark, a Grants Pass Republican and foster parent, said proposals to expand the program statewide last year fell flat amid worries about a $1.8 billion budget gap. But in the end, lawmakers balanced the budget with relatively little pain, thanks in part to tax revenues exceeding forecasts.

"I couldn't quite convince people it was a high priority," Stark said.

Courtesy of the Oregon Legislature

It would have cost an additional $18 million a year for Oregon to expand its program throughout the state, according to a state budget document. That would be a 60 percent increase, given Oregon currently spends $30 million a year on lawyers to represent children and parents in the foster system.

The Office of Public Defense Services which contracts with and oversees the lawyers opted to ask for just a partial phase-in last year. Lawmakers ultimately decided against funding even that $10.8 million expansion, which would have helped thousands of children and parents. They did approve $3.5 million a year from the state general fund, plus federal matching dollars, for lawyers from the Oregon Department of Justice to represent state caseworkers at every court appearance.

"You can't be sending these people in there like lawyers when they're not," Steiner Hayward said. "We really didn't have a choice about that. We had to do it."

Gelser and Stark agreed. As a foster parent, Stark said he observed such a scenario first-hand when a caseworker didn't know what details of a case she was allowed to share in court, he said. That delayed by three months an update to the child's plan for a permanent home, Stark said. "We don't want non-attorneys practicing law."

UNIVERSITY TO STUDY PROGRAM

Faced with an opportunity to qualify for a free University of Chicago study of the program's effectiveness, lawmakers this year signed off on an additional $1.34 million to add Coos and Lincoln counties to the pilot starting in July, according to the Legislative Fiscal Office.

The agency that contracts with the lawyers is careful to say in annual reports that although outcomes have improved in the pilot counties, "the observations do not prove a causal relationship between legal representation and improved results."

Steiner Hayward said she hopes the study will provide independent verification that the pilot program helps children and parents and saves the state money through reduced use of foster care. The same researcher found millions of dollars in savings from a similar program for parents in Washington, Miller has said.

JUDGE CITES BENEFITS

In the three pilot counties, the state tracks metrics of good legal representation. These include the amount of time lawyers spend with clients, in court and in other meetings and preparing cases. It also tracks their caseloads, access to multi-disciplinary staff such as expert witnesses and client satisfaction.

In Yamhill County, Judge John L. Collins says he's observed better outcomes for kids and parents since the program launched.

"Attorneys are able to not only be effective advocates in court, but also often even more importantly, effective advocates in out-of-court (state child welfare) and (citizen review) meetings and counseling of clients that translates into better outcomes sooner for children and parents," Collins wrote in a letter to lawmakers last year.

Attorneys in the program can be "re-engaged in representation if problems develop, often avoiding re-removal which can be particularly difficult for kids." Since the program started in 2014, the annual number of petitions to terminate parental rights in Yamhill County dropped from 23 to just three in 2016, Collins wrote.